IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

WILLIAM H. COSBY, JR., : CIVIL ACTION

: NO. 16-508

Plaintiff, :

:

v. :

:

AMERICAN MEDIA, INC., et al., :

:

Defendants. :

M E M O R A N D U M

EDUARDO C. ROBRENO, J. July 15, 2016

This action arises out of a confidential settlement

agreement signed more than a decade ago in a previous case

before this court, Constand v. Cosby (No. 05-cv-1099). Plaintiff

William Cosby brings claims of breach of contract and unjust

enrichment against a number of parties to the settlement

agreement, alleging that they have violated the agreement. All

defendants have filed motions to dismiss. For the reasons that

follow, the Court will grant several of the motions as they

relate to claims involving voluntary disclosures to law

enforcement officers, but will deny the remainder of the

motions.

2

I. BACKGROUND

The Complaint alleges the following facts:

In 2005, Defendant Andrea Constand sued Plaintiff

William H. Cosby, Jr., claiming that he drugged and sexually

assaulted her at his Montgomery County home. In 2006, Constand

also sued the National Enquirer for defamation over articles the

publication had printed about Constand’s allegations against

Cosby.

Near the end of 2006, the parties settled both cases,

pursuant to a Confidential Settlement Agreement (“CSA”)1 signed

by Cosby; Andrea Constand; Gianna Constand;2 American Media,

Inc.;3 Bebe Kivitz; Dolores Troiani;

4 and several other

individuals who are not parties to the instant case. In the CSA,

the parties agreed to a full settlement and release of all

claims in exchange for financial consideration and mutual

promises to keep information confidential. Those promises

included agreements “not to disclose to anyone, via written or

oral communication or by disclosing a document, in private or

public, any aspect of this LITIGATION,” including “the events or

1 The settlement agreement was private and was never

presented to the Court for approval.

2 Gianna Constand is Andrea Constand’s mother.

3 American Media publishes the National Enquirer.

4 Kivitz and Troiani represented Andrea Constand in the

underlying cases.

3

allegations upon which the LITIGATION was based” and

“allegations made about [Mr. Cosby] or [Andrea Constand] by

other persons.” Compl. ¶ 24.

Nearly a decade later, allegations against Cosby began

to attract widespread national attention. As a result, according

to Cosby, a number of the parties to the CSA took the following

actions:

In early 2014, Andrea Constand said on Twitter, “I

won’t go away, there is a lot more I will say,” and,

“It’s not that everybody just forgot about it, truth

is nobody cared.” Id. ¶¶ 81-82.

On December 1, 2014, the National Enquirer published

an article entitled “Meet the Cosby Accusers!” The

article discussed allegations against Cosby, including

Constand’s allegations. Id. ¶ 35.

In July 2015, after the Montgomery County District

Attorney reopened a criminal investigation against

Cosby as to the events underlying Constand v. Cosby,

Troiani provided the District Attorney with her files

from Constand v. Cosby. She also informed the District

Attorney of the CSA’s contents. Id. ¶¶ 42, 44.

Kivitz, Andrea Constand, and Gianna Constand also

voluntarily disclosed information to the criminal

investigators. Id. ¶¶ 47, 68, 74.

In July 2015, after the Court unsealed some documents

in Constand v. Cosby, court reporting service Kaplan

Leaman & Wolfe (“KLW”) released the full transcript of

Cosby’s 2005 deposition in that case to several

entities, including news organizations. According to

the Complaint, this occurred because Troiani and

Kivitz either instructed KLW to release the

transcript, or failed to use their best efforts to

ensure that KLW complied with confidentiality

provisions. Id. ¶¶ 51-55.

4

In July 2015, Andrea Constand gave an interview to the

Toronto Sun, during which she made statements about

her allegations against and settlement agreement with

Cosby. Id. ¶ 83.

On July 22, 2015, the National Enquirer published an

article entitled “99 Victims in 43 Years for Bill

Cosby!” The article described allegations of sexual

assault asserted against Cosby. It also described

Cosby’s 2005 deposition and noted that Constand v.

Cosby had settled. Id. ¶ 33.

On August 12, 2015, the National Enquirer published an

article entitled “Bill Cosby’s Sickening Attacks

Behind the Scenes of ‘The Cosby Show.’” The article

discussed Cosby’s 2005 deposition and other

allegations against Cosby. Id. ¶ 34.

On October 26, 2015, Constand sued former District

Attorney Bruce Castor for defamation over statements

he has made concerning the events underlying Constand

v. Cosby. Kivitz and Troiani represent Constand in

that suit (Constand v. Castor, No. 15-cv-5799). Id. ¶¶

60-61.

In October 2015, Kivitz and Troiani drafted and sent

an “open letter to Bruce Castor” to the Philadelphia

Inquirer. In the letter, Kivitz and Troiani discussed

details of Constand v. Cosby. Id. ¶ 62.

On January 4, 2016, the National Enquirer published an

article entitled “Saved by the Bell Star Accuses Bill

Cosby, Martin Lawrence, and John Travolta of Abuse.”

The article included descriptions of Cosby’s 2005

deposition testimony. Id. ¶ 32.

On January 6, 2016, the National Enquirer published an

article entitled “World Exclusive: Bill Cosby Will Die

in Jail.” The article described the contents of

Cosby’s deposition and purported to include an

interview with Andrea Constand. Id. ¶ 31.

Cosby alleges that all of these actions violated the CSA.

Cosby filed his Complaint on February 1, 2016, naming

American Media, Troiani, Kivitz, Andrea Constand, and Gianna

5

Constand as defendants. ECF No. 1. The Complaint contains six

counts: one count of breach of contract against each defendant,

and one count of unjust enrichment against Andrea Constand.

Originally, portions of the Complaint were filed under seal, but

the seal has since been lifted. ECF No. 34.5 All defendants have

filed motions to dismiss,6 ECF Nos. 32, 36, 40, which are now

ripe for disposition.

II. LEGAL STANDARD

A party may move to dismiss a complaint for failure to

state a claim upon which relief can be granted. Fed. R. Civ. P.

12(b)(6). When considering such a motion, the Court must “accept

as true all allegations in the complaint and all reasonable

inferences that can be drawn therefrom, and view them in the

light most favorable to the non-moving party.” DeBenedictis v.

Merrill Lynch & Co., 492 F.3d 209, 215 (3d Cir. 2007) (internal

quotation marks omitted). To withstand a motion to dismiss, the

complaint’s “[f]actual allegations must be enough to raise a

right to relief above the speculative level.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007). This “requires more than

labels and conclusions, and a formulaic recitation of the

5 Cosby conceded that there was no reason to maintain a

seal over the Complaint or any other filings in this case.

6 American Media also filed a Motion for Leave to File a

Reply Memorandum, ECF No. 39, which the Court will grant.

6

elements of a cause of action will not do.” Id. Although a

plaintiff is entitled to all reasonable inferences from the

facts alleged, a plaintiff’s legal conclusions are not entitled

to deference and the Court is “not bound to accept as true a

legal conclusion couched as a factual allegation.” Papasan v.

Allain, 478 U.S. 265, 286 (1986).

The pleadings must contain sufficient factual

allegations so as to state a facially plausible claim for

relief. See, e.g., Gelman v. State Farm Mut. Auto. Ins. Co., 583

F.3d 187, 190 (3d Cir. 2009). “‘A claim has facial plausibility

when the plaintiff pleads factual content that allows the court

to draw the reasonable inference that the defendant is liable

for the misconduct alleged.’” Id. (quoting Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009)). In deciding a Rule 12(b)(6) motion,

the Court limits its inquiry to the facts alleged in the

complaint and its attachments, matters of public record, and

undisputedly authentic documents if the complainant’s claims are

based upon these documents. See Jordan v. Fox, Rothschild,

O’Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994); Pension

Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d

1192, 1196 (3d Cir. 1993).

7

III. DISCUSSION

Three motions to dismiss are pending in this case: one

by Kivitz and Troiani, one by American Media, and one by Andrea

and Gianna Constand. Each contends that Cosby has failed to

state claims for breach of contract; Andrea Constand also argues

that Cosby has failed to state a claim for unjust enrichment.

To state a breach of contract claim under Pennsylvania

law, a plaintiff must plead “(1) the existence of a contract,

including its essential terms, (2) a breach of a duty imposed by

the contract and (3) resultant damages.” Pennsy Supply, Inc. v.

Am. Ash Recycling Corp. of Pa., 895 A.2d 595, 600 (Pa. Super.

Ct. 2006) (quoting Corestates Bank, N.A. v. Cutillo, 723 A.2d

1053, 1058 (Pa. Super. Ct. 1999)).

The Court will address each motion in turn.

A. Kivitz and Troiani’s Motion

Kivitz and Troiani argue that Cosby has failed to make

out breach of contract claims against them because their actions

did not breach any obligations set forth in the CSA. Cosby

alleges several distinct types of violations, each of which is

discussed below.

1. Release of the Deposition Transcript

First, Cosby alleges that Kivitz and Troiani “either

instructed the Court Reporter to release” the deposition

8

transcript, or “knowingly failed to use [their] best efforts to

ensure that [their] vendors comply with the confidentiality

provisions of the 2006 Confidential Settlement Agreement.”

Compl. ¶ 55. According to the Complaint, the CSA explicitly

requires such best efforts.7 Id. ¶ 56.

Kivitz and Troiani contend that this allegation is

baseless because (1) they played no role in the release of the

deposition transcript and (2) KLW was not their vendor. The

first argument, of course, raises questions of fact that cannot

be answered at this stage. See DeBenedictis, 492 F.3d at 215

(requiring courts to “accept as true all allegations in the

complaint” at the motion to dismiss stage). As to the second

argument, though Kivitz and Troiani urge the Court to find as a

matter of law that the term “vendor” could not include court

reporters, they have provided no legal authority stating as

much.8 Indeed, the question is whether KLW was Kivitz and

7 For its part, KLW has claimed that it released the

deposition transcript upon request from “various news sources”

due to its “understanding” of the Court’s order unsealing

documents in Constand v. Cosby. Compl. ¶¶ 52-54.

8 They do cite several sources in support of this

argument, Kivitz & Troiani’s Mot. Dismiss 14, ECF No. 32, but

none are dispositive. The National Court Reporters Association

Code of Professional Ethics instructs members to “[b]e fair and

impartial toward each participant in all aspects of reported

proceedings, and always offer to provide comparable services to

all parties in a proceeding.” Code of Prof’l Ethics ¶ 1 (Nat’l

Court Reporters Ass’n), available at www.ncra.org/

codeofprofessionalethics#ncracode. Federal Rule of Civil

9

Troiani’s “vendor” as contemplated by the CSA. In addition to

issues of contractual interpretation, this question raises

factual issues, such as the particular arrangements between KLW

and the parties. Accordingly, the Court will decline to find at

this stage that KLW could not have been Kivitz and Troiani’s

vendor, and thus will deny Kivitz and Troiani’s motion to

dismiss as to claims involving the release of the deposition

transcript.

2. Cooperation with Law Enforcement

Next, Cosby alleges that Kivitz and Troiani breached

the CSA by voluntarily cooperating with law enforcement agents

who were conducting a criminal investigation of Cosby’s conduct,

because the parties to the CSA agreed “not to disclose to

anyone, via written or oral communication or by disclosing a

document, in private or public, any aspect of this LITIGATION,

including the events or allegations upon which the LITIGATION

was based[,] . . . the information that they learned during the

Procedure 28(c) says that “[a] deposition must not be taken

before a person who is any party’s relative, employee, or

attorney; who is related to or employed by any party’s attorney;

or who is financially interested in the action.” Fed. R. Civ. P.

28(c). And in Churchill v. Star Enterprises, No. 97-3527, 1998

WL 254080 (E.D. Pa. Apr. 17. 1998), in the course of reviewing

contested costs, the court noted that costs from a court

reporter were “billed . . . by an independent third party,” id.

at *10. None of these sources stand for the unqualified

proposition that a court reporter cannot be considered a

“vendor,” even as defined by parties to a contract.

10

criminal investigation of COSBY or discovery in the content of

COSBY’s and CONSTAND’s depositions in the LITIGATION, and

information about COSBY and/or CONSTAND gathered by their

agents.” Compl. ¶ 45.

Kivitz and Troiani argue that if this provision of the

contract prevented them from voluntarily cooperating with a

criminal investigation, it is unenforceable because it violates

public policy.

“Where the enforcement of private agreements would be

violative of [public] policy, it is the obligation of courts to

refrain from such exertions of judicial power.” Hurd v. Hodge,

334 U.S. 24, 34-35 (1948). “To declare a contract unenforceable

on public policy grounds, . . . courts must first determine that

the public policy at issue is ‘well defined and dominant.’”

Fomby-Denson v. Dep’t of Army, 247 F.3d 1366, 1375 (Fed. Cir.

2001) (quoting W.R. Grace & Co. v. Local Union 759, 461 U.S.

757, 766 (1983)). Here, the question is whether there is a

robust public policy against the enforcement of contracts that

purport to prevent individuals from voluntarily providing

information concerning alleged criminal conduct to law

enforcement authorities.

Fomby-Denson, from the Federal Circuit, appears to be

the leading case on this subject. In that case, the Army had

terminated an employee (Fomby-Denson) for, among other things,

11

forging an officer’s signature on an official form. Id. at 1369.

Fomby-Denson appealed her termination and lodged complaints with

the EEOC. Id. As a result, Fomby-Denson and the Army entered

into a settlement agreement, in which the Army agreed to cancel

its termination of Fomby-Denson and to pay her a sizable lump

sum. Id. The settlement agreement stated that its terms “shall

not be publicized or divulged in any manner, except as is

reasonably necessary to administer its terms.” Id. Thereafter,

the Army referred the allegations of Fomby-Denson’s forgery to

local “law enforcement authorities for investigation and

possible prosecution.” Id. The Army’s correspondence with those

authorities disclosed some of the terms of the settlement

agreement, including the amount paid to Fomby-Denson. Id. Fomby-

Denson subsequently attempted to enforce the settlement

agreement, arguing that the Army had breached various

provisions, including the confidentiality provisions, by

referring her conduct to law enforcement authorities. Id. at

1371-72.

The Federal Circuit held that enforcing such an

agreement would violate a well-defined and dominant public

policy: “[I]t is a long-standing principle of general contract

law that courts will not enforce contracts that purport to bar a

party . . . from reporting another party’s alleged misconduct to

law enforcement authorities for investigation and possible

12

prosecution.” Id. at 1377-78. The court drew this conclusion

from a number of Supreme Court, federal circuit court cases, and

state court cases. See, e.g., Branzburg v. Hayes, 408 U.S. 665,

696-97 (stating that “it is obvious that agreements to conceal

information relevant to commission of crime have very little to

recommend them from the standpoint of public policy” and

concluding that “[i]t is apparent . . . that concealment of

crime and agreements to do so are not looked upon with favor”);

Lachman v. Sperry-Sun Well Surveying Co., 457 F.2d 850, 853

(10th Cir. 1972) (“It is public policy in Oklahoma and

everywhere to encourage the disclosure of criminal activity.”);

Baker v. Citizens Bank of Guntersville, 208 So. 2d 601, 606

(Ala. 1968) (“[A] contract based upon a promise or agreement to

conceal or keep secret a crime which has been committed is

opposed to public policy and offensive to the law.”). The court

also looked to secondary authorities. See, e.g., Restatement

(First) of Contracts § 548(1) (1932) (“A bargain in which either

a promised performance or the consideration for a promise is

concealing or compounding a crime or alleged crime is

illegal.”); 6A Arthur L. Corbin, Corbin on Contracts § 1421, at

355-56 (1962) (“A bargain the purpose of which is the stifling

of a prosecution is in all cases contrary to public policy and

illegal even though it may not itself be a crime. This is

true . . . whether the prosecution has or has not been started

13

at the time the bargain is made. Bargains of this kind are in

various forms, including promises not to prosecute or not to

give evidence to the prosecuting officers . . . .”).9

Cosby argues that the principle identified in Fomby-

Denson does not apply to voluntary disclosures to law

enforcement officers, but rather only to disclosures elicited

through a subpoena.10 He cites no authorities in support of this

proposition.11 Indeed, to the contrary, Fomby-Denson itself

9 The only relevant Third Circuit case identified by

either party is Woodson v. Runyon, 537 F. App’x 28 (3d Cir.

2013) (nonprecedential). In Woodson, the Third Circuit declined

to enforce an agreement in which one party promised not to

repeat anything the other had said, because the agreement would

have required the first party to commit perjury when called to

testify against the second party before a grand jury.

To be sure, Woodson focuses on the fact that

enforcement of the contract would have required a party to

perjure himself, not that it would have prohibited him from

providing information to law enforcement officers. But, notably,

the Woodson court did not draw a distinction between voluntary

and forced testimony, saying that the witness “was either

subpoenaed or invited to testify as [the defendant’s] witness.”

537 F. App’x at 29. If the witness was simply asked to testify,

then conceivably he could have said no, and in that way complied

with his contractual obligations. In other words, it is not

clear that perjury was the only way the witness could avoid

breaching the contract – yet the Third Circuit still declined to

enforce the contract.

10 Cosby concedes that the CSA does not prohibit

testimony at court proceedings. Pl.’s Opp. Kivitz & Troiani’s

Mot. Dismiss 21, ECF No. 37.

11 He does cite several cases in support of the claim

that agreements prohibiting parties “from further pursuing the

allegations by speaking with anyone voluntarily about them . . .

are routinely found enforceable.” Pl.’s Opp. Kivitz & Troiani’

Mot. Dismiss 20. But none of those cases concerned disclosures

14

involved voluntary disclosures – more voluntary than the case at

hand, even, because in Fomby-Denson, the Army proactively

offered information to local authorities, while in this case,

the disclosures were in response to requests from law

enforcement authorities. And the public policy reasons

underlying the Fomby-Denson principle, and outlined extensively

in that case, apply equally to voluntary disclosures as to

forced disclosures, as there is no reason to conclude that “the

reporting of crimes” is necessarily an involuntary activity. 247

F.3d at 1376.

Accordingly, to the extent that the CSA purports to

prevent its signatories from voluntarily disclosing information

about crimes to law enforcement authorities, it is unenforceable

as against public policy.12 The Court will thus grant the motion

to dismiss the breach of contract claims against Kivitz and

to law enforcement authorities, which is the issue here, so they

are inapplicable to this case.

12 For this reason, the Court need not further consider

Cosby’s allegations that Kivitz and Troiani failed to follow the

CSA’s stated procedure for proper disclosures to law enforcement

authorities. That procedure is relevant only to the question

whether the provision was breached, and not whether the

provision is enforceable if it was breached. In other words, if

the provision cannot be enforced, it does not matter whether any

parties failed to abide by its terms – at least for the purposes

of the breach of contract claims at hand, although that question

may become relevant to the unjust enrichment claim against

Andrea Constand, see infra n. 14.

15

Troiani to the extent that the claims are based on their

disclosures to law enforcement officials.

3. Castor Complaint and Open Letter

Finally, Cosby alleges that Troiani and Kivitz

breached the CSA by (1) representing Andrea Constand in her suit

against Bruce Castor, and (2) sending an “open letter to Bruce

Castor” to the Philadelphia Inquirer, which printed the letter.

Kivitz and Troiani argue that these allegations do not

suffice to state breach of contract claims because the CSA does

not prohibit its signatories from making public statements on

issues that are already matters of public record – and that

nothing contained in either Constand’s complaint against Castor

or their own open letter to Castor revealed information that had

previously been concealed to the public.

It is true that the Court can, at this stage,

determine whether the CSA contains an unambiguous exception to

the general prohibition against disclosures. See KDH Elec. Sys.,

Inc. v. Curtis Tech. Ltd., 826 F. Supp. 2d 782, 796-97 (E.D. Pa.

2011) (noting, at the motion to dismiss stage, that courts can

interpret unambiguous contracts as a matter of law, and that

“ambiguity in the agreement is sufficient to overcome [a] motion

to dismiss”). But even assuming for the purposes of argument

that the CSA does contain that exception – such that the parties

16

may comment on the underlying events so long as their statements

reveal nothing that was not already a matter of public record –

several factual matters remain, including what exactly was in

the public record and whether the statements at issue addressed

only subjects already in that public record. See In re

Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1424-25 (3d

Cir. 1997) (when ruling on a motion to dismiss, a district court

is “not permitted to go beyond the facts alleged in the

Complaint and the documents on which the claims made therein

were based”). Thus, the Court will deny the motion to dismiss

the breach of contract claims involving the Castor complaint and

open letter.

* * *

Accordingly, the Court will grant Kivitz and Troiani’s

motion to dismiss the claims against them with respect to the

allegations involving disclosures to law enforcement officials,

but deny the motion as to the remainder of the claims.

B. American Media’s Motion

Cosby also brings a breach of contract claim against

American Media for articles the National Enquirer has published

about Cosby since the parties entered into the CSA. American

Media contends that this claim should be dismissed because: (1)

the articles concerned matters that were already in the public

17

record, which American Media argues is not prohibited by the

CSA, and (2) Cosby breached the contract himself, and thus

cannot enforce it.

Neither argument is persuasive. As discussed above,

even assuming that American Media’s interpretation of the

contract is correct, questions of fact remain, such as what was

already in the public record when the National Enquirer

published articles about Cosby. Cosby’s own actions, and the

timing thereof, are also matters of fact; arguments concerning

who said what when, as it were, are premature at this stage.

Accordingly, the Court will deny American Media’s

motion to dismiss.

C. Andrea and Gianna Constand’s Motion

Finally, Andrea Constand and Gianna Constand move to

dismiss the breach of contract claims against each of them and

the unjust enrichment claim against Andrea.

1. Gianna Constand

As counsel for Cosby stated at the hearing on this

motion to dismiss, the only allegation against Gianna Constand

is that she violated the CSA by voluntarily participating in a

re-interview with the law enforcement agents who were

investigating Cosby’s criminal case. For the reasons discussed

above, if this conduct were to constitute a breach of the CSA,

18

the provision at issue is unenforceable. Accordingly, the Court

will grant the motion to dismiss the breach of contract claim

against Gianna Constand and dismiss her as a defendant in this

case.

2. Andrea Constand

A portion of Cosby’s breach of contract claim against

Andrea Constand also rests on allegations that she voluntarily

provided law enforcement officials with information; the Court

will grant her motion to dismiss the breach of contract claim

against her to the extent that it involves these allegations.

The remainder of the breach of contract claim against

Andrea Constand involves (1) two tweets from 2014, in which she

said, “I won’t go away, there is a lot more I will say,” and,

“It’s not that everybody just forgot about it, truth is nobody

cared”; and (2) an interview she gave to the Toronto Sun.

Constand argues that the tweets cannot form the basis

for a breach of contract claim because they do not mention Cosby

or the litigation by name.13 This argument is unavailing because,

of course, a statement can be a reference to an individual or

13 She also contends, using the same argument articulated

by Kivitz, Troiani, and American Media, that the tweets could

not have violated the CSA because they did not reveal any

information that was not already in the public record. For the

reasons discussed above, this argument raises factual questions

that cannot be resolved at this stage.

19

situation even if it does not explicitly say so. Whether the

tweets were in fact references to Cosby – and, if so, whether

Constand breached the CSA by tweeting them – are questions to be

answered at a later stage.

Regarding the Toronto Sun interview, Constand argues

that if her comments to that media outlet constituted a breach

of contract, then Cosby breached the contract first because he

had previously made similar comments elsewhere in the press. As

discussed above, this argument is premature, as Cosby’s own

actions remain questions of fact at this point. Accordingly, the

Court will deny Andrea Constand’s motion to dismiss the breach

of contract claim against her, except insofar as the claim

relies on allegations that she voluntarily disclosed information

to law enforcement officers.

In the alternative, Cosby also claims unjust

enrichment against Constand, alleging that she received

substantial financial benefit from the CSA, which she has now

breached. Constand argues that Cosby’s unjust enrichment claim

should be dismissed for two reasons.

First, she contends that this claim cannot survive

because the doctrine of unjust enrichment is inapplicable here.

Unjust enrichment is a quasi-contractual claim in which the

contract at issue “is implied in law, and ‘not an actual

contract at all.’” Hershey Foods Corp. v. Ralph Chapek, Inc.,

20

828 F.2d 989, 998 (3d Cir. 1987) (quoting Ragnar Benson, Inc. v.

Bethel Mart Assocs., 454 A.2d 599, 603 (Pa. Super. Ct. 1982)).

To sustain such a claim, “the claimant must show that the party

against whom recovery is sought either wrongfully secured or

passively received a benefit that would unconscionable for the

party to retain without compensating the provider.” Id. at 999.

In Pennsylvania, the doctrine is unjust enrichment is

“inapplicable when the relationship between the parties is

founded on a written agreement or express contract.” Benefit Tr.

Life Ins. Co. v. Union Nat’l Bank, 776 F.2d 1174, 1177 (3d Cir.

1985) (quoting Schott v. Westinghouse Elec. Corp., 259 A.2d 443,

448 (Pa. 1969)). Constand argues that because there is a written

contract between the parties in this case, unjust enrichment

cannot apply under the circumstances here.

However, as Cosby points out, if a contract is

unenforceable in whole or in part – as Constand alleges is the

case here – unjust enrichment may apply. See, e.g., Fish Net,

Inc. v. ProfitCenter Software, Inc., No. 09-5466, 2011 WL

1235204, at *10 (E.D. Pa. Mar. 31, 2011) (dismissing an unjust

enrichment claim because “[n]either party claims that the

contract was either invalid or unenforceable”); Armstrong World

Indus., Inc. v. Robert Levin Carpet Co., No. 98-5884, 1999 WL

387329, at *7 (E.D. Pa. May 20, 1999) (noting that a claim for

unjust enrichment could have survived if either party alleged

21

that the contract was unenforceable); Shulman v. Cont’l Bank,

513 F. Supp. 979, 986 (E.D. Pa. 1981) (“[I]f an agreement is

unenforceable, in some circumstances a party may be entitled to

restitution from another who has been unjustly enriched at that

party’s expense.”).

Thus, because the enforceability of part of the CSA is

disputed, this argument does not provide a basis for dismissing

the unjust enrichment claim.14

Second, Constand argues that Cosby cannot recover

under an unjust enrichment claim because, under the doctrine of

unclean hands, Cosby himself breached the contract first. Again,

this argument turns on factual matters involving Cosby’s own

14 Recovery under an unjust enrichment claim may

ultimately be limited to whatever portion of the contract is

found to be unenforceable. See Curtin v. Star Editorial, Inc., 2

F. Supp. 2d 670, 675 (E.D. Pa. 1998) (“Recognizing that this

action is at a very early stage, we will permit plaintiff to

proceed at this time with the claim of unjust enrichment, but

only as it relates to the [provision that may be

unenforceable].”).

Additionally, the Court notes that, like Kivitz and

Troiani, Constand contends that her cooperation with law

enforcement officers did not in fact violate the CSA. While that

issue is irrelevant to the Court’s partial dismissal of Cosby’s

breach of contract claims, it is relevant in the unjust

enrichment context – because it may be that Constand could not

have been unjustly enriched if she did not even breach the

unenforceable provision in the first place. However, the issue

whether Constand complied with the CSA’s mechanism for

disclosing information to law enforcement officer raises factual

questions that cannot be answered at this stage.

22

conduct and the timing thereof, and thus is premature at the

motion to dismiss stage.

The Court will therefore deny the motion to dismiss

Cosby’s unjust enrichment claim.

IV. CONCLUSION

For the foregoing reasons, the Court will grant the

motions to dismiss the portions of Cosby’s claims alleging that

various defendants breached the CSA by voluntarily disclosing

information to law enforcement officers, but will deny the

remainder of the motions to dismiss. An appropriate order

follows.

23

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

WILLIAM H. COSBY, JR., :

: CIVIL ACTION

Plaintiff, : NO. 16-508

:

v. :

:

AMERICAN MEDIA, INC., et al., :

:

Defendants. :

O R D E R

AND NOW, this 15th day of July, 2016, for the reasons

set forth in the accompanying memorandum, the following is

hereby ORDERED:

(1) Kivitz and Troiani’s Motion to Dismiss (ECF No. 32) is

GRANTED in part and DENIED in part. The breach of

contract claims against Kivitz and Troiani are

dismissed to the extent that they are based on

allegations that Kivitz and Troiani voluntarily

disclosed information concerning alleged criminal

activity to law enforcement authorities.

(2) American Media’s Motion for Leave to File a Reply

Memorandum (ECF No. 39) is GRANTED.

(3) American Media’s Motion to Dismiss (ECF No. 36) is

DENIED.

24

(4) Andrea and Gianna Constand’s Motion to Dismiss (ECF

No. 40) is GRANTED in part and DENIED in part. The

breach of contract claims against Andrea and Gianna

are dismissed to the extent that they are based on

allegations that Andrea and Gianna voluntarily

disclosed information concerning alleged criminal

activity to law enforcement authorities. Gianna

Constand is thus DISMISSED as a defendant.

AND IT IS SO ORDERED.

/s/ Eduardo C. Robreno

EDUARDO C. ROBRENO, J.